One of the significant omissions in this Presidential campaign has been a discussion of possible new appointments to the Supreme Court.  In the last several elections, this issue has been consistently discussed, most often in terms of the potential for overturning Roe v. Wade.  Remember how often Democrats especially were forced to say that they had no "litmus test" for new appointees?  I've been baffled about why the issue hasn't emerged, especially on the Republican side, particularly since Justice Ginsburg is the most likely to retire, and a Romney appointment would certainly and dramatically shift the balance of the Court.  This would seem like a red-meat issue for Republicans, but it has barely arisen.

In the November 8th issue of the New York Review of Books, Cass R. Sunstein makes an important, but easily overlooked point, a point whose importance is brought home by a decision this week by the U.S. Court of Appeals for the Second Circuit finding DOMA unconstitutional.  DOMA, of course, is the Defense of Marriage Act, a cleverly named act (Republicans are good at misleading names) that never-the-less seems to imply that in an unfettered market economy, heterosexuality wouldn't be able to hold its own. 

Sunstein reminds us that only a few cases involve Constitutional issues and that most of the thousands of regulatory rules issued every year, rules that insure implemention of laws (reform of health care, financial regulations, consumer protection, food inspection, and on and on) are settled in other ways.  Most aren't challenged at all.  Another several hundred go through a review process at the White House Office of Information and Regulatory Affairs, an office that I had never heard of, despite my thinking that I was relatively well-informed about legal and political matters.  A small group of these may be challenged in court, usually a federal court of appeals with a three-judge panel.  These judges have life-time appointments, and who they are (and who appoints them) will also affect our lives for generations to come.  So it is not only the next President's power to appoint Supreme Court justices that it is at stake here; it's also that the appointments, as Sunstein says, "will help to establish the fate of numerous rules designed to protect public safety, health, and the environment."

The Court of Appeals case that caught my attention this week was Windsor v. United States, decided by the U.S. Court of Appeals.  It was the second Circuit Court decision to rule DOMA unconstitutional.  In this case, unlike the ones that Sunstein is focused on, the issue clearly does involve Constitutional issues and so will make its way to the Supreme Court.  But again, it shows the power and impact of the lesser federal courts.  In this case, Edith Windsor and her partner, Thea Spyer, had been together for 42 years.  They had been married in Canada in 2007, and both resided in New York at the time of Spyer's death in 2009.  New York would later legalize same-sex marriage, but it had not done so in 2009.  The state did, however, recognize marriages, including common law marriages, that were valid in other states or countries.  When Spyer died, she left her estate to Windsor.  The IRS socked Windsor with an estate tax of over $360,000, a tax that wouldn't have applied if the couple were recognized as married.  But because DOMA specifically overrules the traditional principle that states determine their own laws about marriage and divorce, the IRS stepped in to collect the money.  Windsor sued.  And the Circuit Court, in a 2-1 decision, made its ruling that DOMA is unconstitutional and that Windsor's right to inherit as a spouse should be protected.

President Obama has instructed the Attorney General not to defend DOMA in the courts.  So the non-moving party, i.e., the United States, actually switched sides in the middle  of the case.  Until 2011, the government defended the IRS.  After that, it not only withdrew from that defense, but switched to filing briefs for Windsor.  Conservatives stepped into the breach, however, and the Congress formed something called BLAG (the Bipartisan [LOL] Legal Advisory Group to represent the IRS position.  One point that's important to note here is that although, thanks to Obama, the Justice Department will not defend DOMA, that doesn't mean that the roughly thousand laws and regulations that affect same-sex couples don't remain in place, adversely affecting the lives of gay and lesbian citizens, including those who are legally married in states that have same-sex marriage or want to be married in states that don't.

On October 18th, the federal Court of Appeals for the Second Circuit joined that in the First Circuit in deciding by a 2-1 vote that DOMA is unconstitutional.  The majority opinion was written by Chief Judge Dennis Jacobs, a conservative appointed by George H. W. Bush--for once a conservative who is true to actual conservative positions like the traditional notion that states determine their own marriage and divorce policies and that stare decisis remains a controlling principle and should be ignored only in exceptional circumstances.  The minority opinion, concurring in part and dissenting in the most important conclusion, was written by a Clinton appointee.  It is hard to imagine in today's charged atmosphere that Romney would appoint or a Republican Senate approve a conservative of Jacobs's stripe. 

What I had planned to do in today's blog was rehearse the arguments BLAG made in the case and the thoroughness with which the majority opinion demolished them.  But I've already gone on long enough about the case itself and will end instead with a couple of observations about how DOMA and its consequences affect me personally.  It is important to say, however, although Windsor won at this level, the challenges to DOMA aren't going to end here, and Windsor isn't about to start spending any money that might be eventually refunded to her.  This is one issue that is clearly going to the Supreme Court.

Personally, there is no chance that in any foreseeable future Kansas will authorize same-sex marriages.  And the state will not recognize marriages performed in other states if those marriages would not be legal in Kansas.  Mohamed and I had thought at one point of going to Iowa, my home state, where same-sex marriages are performed.  What was frustrating as we discussed this with friends was how many of them assumed that such a marriage would have actual legal consequences for us.  DOMA is still the law of the land, and its provisions overrule any state laws.  (Conservatives have no compunction about the contradictions between their supposed philosophical principles, here their traditional favoring of state laws over federal "intervention" and judicial "activism.")  The two most immediate consequences of DOMA for Mohamed and me would be totally unaffected by a marriage in Iowa.  First, if we were a legally married couple, Mohamed's visa status would be simplified; he would be automatically eligible for a green card.  Second, like Edith Windsor, he would be in a very different position about estate taxes. 

Who the President appoints to federal courts at all levels matters--and matters substantially.  The laws and regulations are moving slowly in the direction of less discrimination.  But that movement is fragile, and activist conservative courts can undo them with, as the saying goes, a stroke of the pen.